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Another question concerns the provisions that appear to conflict with UK law. Perhaps the noble Lord will intervene on this one as well. One of the charter’s provisions is that no one should be convicted for an offence of which he has already been acquitted. This point has already been raised. The Government have set about altering the rules on double jeopardy in certain cases.

The more one looks at the charter in detail, the more one sees ways round the safeguards, which is why I begin to see why the Government have tried so hard in so many different ways with so many ingenuous devices to try to make it watertight, but I doubt whether it works. I also wonder why we need both this charter and the ECHR. One has a slight suspicion that the EU just wanted to have one as well. In the event of a conflict between the ruling of the ECJ and the European Court of Human Rights in Strasbourg, which one will have priority? I imagine that it will be the ECHR.

In speaking to Amendment No. 87, my noble friend Lord Kingsland raised the question of whether, when the ECJ makes a ruling on the charter that is justiciable in another country, that ruling will apply to this country as well, because the charter will have to be applied through its incorporation into EU law as a decision concerning another country. When that point was raised in Committee in another place, the Minister, the Parliamentary Under-Secretary—admittedly she had very little time—replied by making two very simple points. First, she asked whether we were not all aware that the ECJ’s decisions had been binding since 1957 and, secondly, she said that the charter created no new rights. Although those answers have the merit of being simple and direct, they are not actually an answer to the question raised. There is a way in which this could have been addressed: the protocol should have said that it has effect, regardless of other treaties or EU

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law. In that way, the protocol would have been much more likely to be watertight.

I remain deeply sceptical. I raise these questions and await the Minister’s reply but, because of all my doubts, I am strongly sympathetic to the first amendment, moved by my noble friend, that the charter should be struck out.

Lord Tomlinson: I shall very briefly intervene in this debate. The noble Lord, Lord Lamont, made only one point on which I wish to follow him because I fundamentally disagreed with everything else that he said. He raised the possibility of European Union accession to the European Convention on Human Rights. That is very much in the treaty. I have not followed the amendments through that far yet, but I would assume that Her Majesty’s loyal Opposition are opposing that in the same way as they oppose everything else. Just in case they are not, I hope that they will join in the appeals that are being made universally, almost, to the Russian Government to get them to ratify protocol 14, which is the fundamental requirement in the Council of Europe for the accession of the European Union to the European convention to take place. Forty-six member states have so far ratified protocol 14; only one state has not. I hope that all noble Lords want to see that take place, as it will be a protection against some of the fears that they have expressed, which will be somewhat mitigated by the fact of European Union accession and binding itself to the judgments of the European court.

To start back where the noble Lord, Lord Kingsland, began, he appeared singly uncomfortable in moving his amendment. I was somewhat surprised that he had to keep going through green-backed documents to find selective quotations from the Select Committee in another place. I wondered whether that was because of the quality of the reports from the Constitution Committee and the European Union Committee in this House. Those reports were much less easy to fillet appropriate quotations from that supported his argument. The quotations were not particularly helpful and he would have done much better to stick clearly to the words in the charter and, in particular, the very clear words in the protocol on the application of the Charter of Fundamental Rights to Poland and the United Kingdom.

4 pm

Lord Kingsland: I am most grateful to the noble Lord for giving way with his customary generosity. I can answer his question very simply. It is in those documents that the Government most clearly set out their view of the charter. That is precisely why I used them because Mr Miliband and Mr Murphy both express in no uncertain terms their view about what the charter does. It was for that reason that I relied on those documents. You do not get the same statements in the House of Lords documents.

Lord Tomlinson: But you have infinitely better quality reports, which are argued with great cogency and clarity. When the report was presented to this

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House at the time of Second Reading it was universally welcomed by the House as being authoritative and a basis on which we ought to proceed when we looked at the whole question of ratification. I will give way but I promised to be brief and I do not want to be filibustered.

Lord Pearson of Rannoch: I have no intention of filibustering in these proceedings but the noble Lord must not say that the report of your Lordships’ Select Committee was unanimously accepted in this House. Indeed, he may recall that I had a debate before the House rose in July, which pointed out the composition of your Lordships' Select Committee, which contains only one Eurosceptic. All the other members, including the chairman, are among the most ardent Europhiles in the House. It is scarcely surprising that this—

Baroness Ashton of Upholland: I hesitate to intervene but I do not wish the noble Lord accidentally to assume anything about the integrity of the individuals on the committee. His remarks could be interpreted to imply that because one is pro-European one might not look at things totally impartially. I am sure that is not what the noble Lord meant but I wanted to clarify that as anyone reading what he said might get that impression.

Lord Pearson of Rannoch: My noble friends on my left are saying that there is no possibility of my remarks being construed in that way. I was merely pointing out that your Lordships’ Select Committee is almost wholly in favour of the project of European Union and of this treaty. Therefore, a number of us did not take its conclusions at all seriously.

Lord Tomlinson: Can I get back into this because I thought I had the Floor?

Lord Lester of Herne Hill: I remind the noble Lord that the chairman of the committee is the noble and learned Lord, Lord Mance, and that the chairman of the other committee was the noble and learned Lord, Lord Hope. Both are Law Lords and it is inappropriate to suggest that they are politically motivated.

Lord Pearson of Rannoch: I accept that. I was referring to your Lordships’ Select Committee on the European Communities.

Lord Tomlinson: I am sure noble Lords will understand that I have almost forgotten what I was going to say. However, I can be persuaded back to the protocol that I was going to quote from. It has a clarity of language which everybody should accept as saying what it means and meaning what it says. We should not look for hidden elephant traps which are not really there. Article 1 states:

That simplicity of language was devised so that people who are proud to profess themselves non-lawyers can understand it without the obfuscation that lawyers frequently introduce into the argument. Paragraph (2) of Article 1 has the same level of simplicity.



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All I want to say, in what would have been a very brief contribution were it not for multiple interventions, is that the Charter of Fundamental Rights is clear. It records existing rights. The charter sets out a list of the rights and freedoms that people already have and enjoy as EU citizens. In conclusion, I ask my noble friend to confirm one thing when she replies so that, as a humble non-lawyer, I can see whether my understanding might have some modicum of truth. Are the Government confident that a legally binding charter preserves the legal status quo in the United Kingdom? That is a simple question, capable of a “yes” or “no” answer. I look forward to her answer, which she can give with great brevity.

Lord Campbell of Alloway: I wish to ask a short question. Does the noble Lord appreciate that it is not a question of extending the jurisdiction of the ECJ? It has got it already. It has exercised it since Messina. Perhaps the noble Lord would exercise his mind to this and reply. I know of no circumstance in which that court has not interpreted and applied the reasoning of the European Court of Justice, so there is a composite judicial power which can be exercised and does not make the position watertight, which is against our interests.

Lord Tomlinson: I think that the question was: do I appreciate that? I appreciate the right of the noble Lord to interpret it that way. Do I appreciate it to the extent that I agree with it? The answer is emphatically “no”.

Lord Waddington: The message seems to be that we do not have much to worry about, but that is inconsistent with the way in which the Government have worried and worried about this charter for years and years. It was not long after the remarks about the charter being no different from The Beano that the Government began to say that the charter was very dangerous and had to be resisted, not least because of its far-reaching social and employment ramifications.

Then the Government said that because the charter was so dangerous, they could not possibly agree to it. They then said that if they were to agree to it, there would have to be a protocol to make sure that the charter would not damage Britain in the way that they thought it would damage others. That is the history of the matter and that is why I am slightly sceptical when people get up to tell us that there is nothing whatever to worry about.

The wording of the protocol was referred to by the noble Lord who has just spoken. We have a protocol on Article 1 and the first paragraph contains very curious wording. It states:

with the charter. It states that it does not extend the ability of the ECJ to do that. It does not say that the ECJ has no power to rule that the UK is inconsistent with the charter. No wonder the legal adviser to the Commons Scrutiny Committee stated:



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that is, the result that the Government apparently intended. I want to make this simple point: it seems to me, and it clearly seems to others, that the protocol ensures that British people get the worst of all worlds.

Lord Tomlinson: Will the noble Lord, Lord Waddington, proceed to the second paragraph on Article 1 in the protocol. It states:

That really does answer the noble Lord’s Aunt Sally—or, rather, it knocks it down.

Lord Waddington: I am not sure that the noble Lord is right, but perhaps I will be able to develop on that in a moment.

Lord Lamont of Lerwick: Does not my noble friend agree that what the noble Lord has just read out rather supports my noble friend’s case? It says,

Where the United Kingdom has provided for such rights, there is a justiciable issue. The court is able to rule where the UK has provided for such rights in its own law—that is, the ECJ has jurisdiction over UK law. That is repeated in subsection (1) of Article 1 as well.

Lord Waddington: I am very grateful to my noble friend. One need say no more at this stage than that the wording is, to say the least, very curious, and it is highly doubtful whether it has the effect which the Government apparently thought that it would have. Certainly the legal adviser to the Commons Scrutiny Committee thought that it was completely ineffective to do that which the Government apparently intended. But why did the Government intend it in the first place? They could not possibly have taken the view that the charter creates no new rights because if that were the case, there would be no need for any fuss at all.

The Government are accepting that the charter may produce new rights and that is why, if the protocol is effective, it ensures that British people get the worst of all worlds. British citizens cannot go to the European Court of Justice if they think their rights under the charter, such as their trade union rights, have been infringed. That surely follows from Article 1(2) of the protocol and Article 2. British citizens will be bound by the decisions of the court as a result of proceedings brought by citizens of other countries. Cases will be brought by the citizens of other countries, the European Court of Justice’s interpretation of the charter will become part of European law and, as European law has primacy over our law, our courts will follow the European Court’s ruling. That would be clear enough, even without the preamble to the protocol which stresses that this protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the treaty on the European Union, the treaty on the functioning of the European Union and Union law generally.



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I cannot for the life of me see how British people should applaud the Government for introducing this protocol because if any real new rights are created as a result of the charter, the British people are, by the action of this Government, barred from benefiting from them. According to the Commons European Select Committee, the only way of ensuring that the charter does not affect UK law in any way is to make it clear that the protocol takes effect, notwithstanding the treaties or Union law in general. Finally, why have the Government not taken the advice of that Commons Select Committee? If they had, they would not be in the mess which they are now clearly in.

Lord Pearson of Rannoch: In our previous proceedings, the noble Lord, Lord Owen, asked the very important question: what are the limits on the powers of the European Court of Justice? By way of answering that question, I shall put in your Lordships’ Library a brief two-page article written by the well known constitutional lawyer, Mr Martin Howe, which shows that there are in fact no limits on the power of that court and therefore no limits on the way the court will eventually interpret the Charter of Fundamental Rights. For the purposes of this debate it might be worth putting on the record a few very short quotations from the court over the years which show how the court has advanced its own powers beyond the powers conferred in the treaties.

Mr Howe makes the very important point that the feature which sets the European treaties apart from all other international treaties is that it is a system of law which penetrates inside the member states and takes precedence over the national laws in the domestic courts of the member states. It is that internal penetration of the treaty of Rome which sets it apart.

4.15 pm

One of the key points is that the treaty articles having direct effect inside the member states are not actually stated in the treaties. This was decided by the European Court in the Van Gend en Loos case in 1963, which has already been mentioned by the noble Lord, Lord Kingsland, in his opening remarks. It is worth citing the judgment in that case. The court said that,

So in 1963, although the court is beginning to advance its jurisdiction, it does say that it is within limited fields. That will change, as we shall see.

We then go on to the Costa v ENEL case in 1964, when the court said:

That is what the court said; it is not in the treaty. By 1970, in the Internazionale Handelsgessellschaft case the European Court declared its view that Community

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law should take precedence even over the constitutional laws of the member states, including basic entrenched laws guaranteeing fundamental rights.

In 1987, in the Foto-Frost case, the court ruled that national courts had no power to question the validity of Community measures and reserved that power exclusively to itself, even though there was nothing in the treaty or in general principles of international law that would require states to recognise the validity of acts which are outside the powers conferred by the treaty. Judicial activism again.

So the story goes on. In 1992, in the European Economic Area Agreement, the court made it clear that the objective of all the Community treaties was to contribute together to make concrete progress towards European unity. It went so far as to say that the provisions of the treaty of Rome on free movement and competition, which is what that particular judgment was about, far from being an end in themselves,

By now, those objectives were to be enforced in “ever wider fields,” no longer the limited fields that we had before.

The story continues: in the 1998 Silhouette case, when the court dealt with trademarks, and in the 1999 agrochemical case. I will not try the Committee’s patience with quotations from those cases, but it all continues in the same direction.

We come now to the recent tax cases. I asked the Minister at our last sitting whether the Lisbon treaty could lead to the harmonisation of direct tax. The treaty has been silent on direct tax, but refers to indirect tax. The answer is that the court is already there. It has already invaded corporation tax and invoked the general clauses of the treaty on non-discrimination to strike down national tax legislation. An important example is the 2002 Lankhorst-Hohorst case on tax credits on payments by a subsidiary to its parent company in a member state. I mentioned that in our previous proceedings; it denudes national treasuries of huge sums of money, although it is quite favoured by the finance directors of international companies.

Then we come to the court setting up its own criminal areas, such as in 2005, with the environmental protection case. The court decided that the EU can specify and impose criminal offences and penalties in the very wide fields where the EC has existing competence. If that was right, the court had these powers over criminal law from the day the treaty of Rome was signed on 25 March 1957. Yet if anyone had said that in 1957, they would have been laughed at.

As the noble Lord, Lord Kingsland, mentioned, we saw how the opt-out from the 48-hour week, which was negotiated at Maastricht, was circumvented because the Commission said that it did not come under social policy but under health and safety at work. The court agreed and the United Kingdom lost. In our previous proceedings I read out the resultant letter from Mr Major to Mr Santer complaining about what had happened.


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